Legal Watch: Personal Injury

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1 Legal Watch: Personal Injury 5th June 2014 Issue: 021

2 Civil Procedure/Service Of Claim Form There has been a run of cases relating to the service of claim forms and this continues with Kaki v National Private Air Transport Co and another (2014) [Lawtel 30/05/2014]. Although this is a commercial case it is of significance to personal injury claims because any claimant, who falls foul of the rules as to service of a claim form, could attempt to use cases such as this as a way of circumventing the problem. In so far as it is relevant to this report, CPR 6.15 states (emphasis added): In This Issue: Civil Procedure/Service Of Claim Form Jackson/Mitchell Plexus (Scotland): Taylor Review of Costs in Scotland The Scottish Government Responds 1. Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place. 2. On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service. The claimant/applicant applied for an order extending time for service of the claim form retrospectively and/or directing that the steps taken to bring the claim form to the attention of the respondent/defendants amounted to good service and/or dispensing with service of the claim form. The claimant claimed for the return of US$4.4m paid to the defendants under an agreement to purchase an interest in an aircraft, or damages, on the basis that the agreement had been repudiated by the defendants. There was an alternative claim for conversion. The agreement was governed by English law. The defendants were domiciled in Saudi Arabia. The claimant sent a letter before action together with the claim form to the address in Saudi Arabia stated in the agreement which was the defendants registered address. The letter and claim form were also sent by to a member of the defendants legal department. The claimant also asked for details of an agent

3 for service in England. No response was received and the claimant obtained permission to serve the claim form on the defendants out of the jurisdiction. The claim form was sent to the Foreign Process Section of the High Court for service by the Saudi authorities. The claimant obtained an extension of time to serve the claim form and sent the claim form and order extending time to the Saudi address and by to the defendants legal adviser. A further extension was obtained while awaiting service by the Saudi authorities. The claimant then obtained an order for alternative service by delivering the claim form to the Saudi address and to London solicitors. The order for alternative service was amended to reflect a new Saudi address for the defendants. The claim form was delivered to the London solicitors one day after the time for service expired and to the Saudi address three days later. The claimant obtained summary judgment. The defendants then filed an acknowledgment of service indicating that it intended to challenge English jurisdiction and applied to set aside the judgment on the basis that the claim form had been served after the period of its validity had expired and that it had been unaware of the date for the hearing of the summary judgment application. Allowing the application in part, the deputy High Court judge held that the court would not retrospectively extend time for service of the claim form under CPR 7.6(3). The key questions were whether the claimant had taken all reasonable steps to serve in time and whether the application for a retrospective extension had been made promptly. The claimant explained why there had been delay in serving in Saudi Arabia, including the timing of Ramadan, and that he had not realised until the defendants application that service had been effected a few days late. His case was that he had done enough in the circumstances. However, he had not taken all reasonable steps. For example he could have served the London solicitors at any time rather than trying to coordinate service on them and in Saudi Arabia. It would have been a reasonable step to serve them first. Furthermore, there had been delays in instructing agents in Saudi Arabia and delays by the agents. The claimant had not impressed on them the need for urgency. He must have known that service on the London solicitors had not been in time and that meant the application for an extension had not been made promptly. the fact that the defendants had been well aware of the proceedings was a critical factor The court could retrospectively validate alternative service out of the jurisdiction; it was not necessary to show that the circumstances were exceptional. The method of alternative service could neither be explicitly permitted nor expressly prohibited in Saudi Arabia. There was no doubt that by sending the letter and claim form to Saudi Arabia and ing the defendants legal advisers, the defendants had been fully apprised of the nature of claim after permission to serve out had been granted and during the period of validity of the claim form. It was not the claimant s fault that service through diplomatic channels had been unsuccessful. Although not all reasonable steps had been taken to serve a claim form within the period of its validity, overall significant efforts had been made over a prolonged period and the claim form had been brought to the attention of the defendants, and it was right retrospectively to validate the steps that had been taken as good service under CPR 6.15(2). The defendants objection was technical and the claim was not time-barred. Requiring a new claim form to be served would simply waste further time and costs. The effect of the order was not tantamount to saying that a failure to take all reasonable steps was a good reason for retrospectively validating alternative service. Although it was not of itself a good reason, the fact that the defendants had been well aware of the proceedings was a critical factor. It was not necessary to decide the application to dispense with service. If the court had not retrospectively validated service under CPR 6.15(2), it would not have rectified the errors of procedure with regard to service generally under CPR 3.10.

4 Jackson/Mitchell The case of Holloway and others v Transform Medical Group (CS) Ltd and others (2014) EWHC 1641 (QB) looks at the status of a cut-off date in group litigation and the impact of Mitchell on an application to join claimants late. Over 1,000 women had brought claims for loss and damage arising out of the use of allegedly defective implants, manufactured by a French company (PIP), in breast augmentation surgery. The defendants, the owners of private clinics in which the surgery was carried out, resisted the claims. In April 2012, an order was made that no claim could be added to the group register without the permission of the court after 4pm on 8 April The applicant/ claimants solicitors made the instant applications 10 months after that cut-off date. It was the defendants case that the applications, properly analysed, were applications for relief from sanctions under CPR 3.9. The claimants argued that they were never part of the group litigation order and so they had not disobeyed any order of the court; therefore CPR 3.9 did not apply. Were a cut-off date not a sanction, it would be difficult to see what purpose it served in the management of group litigation. CPR 3.9 therefore applied. the group could not do so without the permission of the court. Relief was available in the form of permission. Were a cut-off date not a sanction, it would be difficult to see what purpose it served in the management of group litigation. CPR 3.9 therefore applied. The claimants solicitors had failed to have the claims joined to the register before the cut-off date; failed to make an application for an extension before the cut-off date; and having taken the decision to make the application, failed to do so until 10 months had elapsed. Those failures were serious and sustained. There was no good reason for any of them and nothing was done to meet the deadline. All that was the responsibility of the solicitors. Whether considered under CPR 3.9 or under CPR 1.2, as framed in CPR 1.1(2), (the overriding objective) the applications were hopeless. To grant them would be to undermine the discipline of the litigation. The cut-off date would be rendered meaningless. Such prejudice as there might be proved to be to the claimants would be laid at the solicitors door. Even before the changes in the CPR and the shift of approach from Mitchell onwards, the conclusion would have been exactly the same. Rejecting the applications, the High Court judge held that the purpose of a cut-off date was to secure the good management of the claims subject to the group litigation order. It was difficult to characterise as something other than a sanction, the consequences that those who had not joined

5 Plexus (Scotland): Taylor Review of Costs in Scotland The Scottish Government Responds On Monday the Scottish Government responded to the report presented in September 2013 by Sheriff Principal Taylor. The intention is to implement the recommendations incrementally, with varying degrees of further consultation as required. At the centre of the process is a vision that: The Scottish justice system will be fair and accessible, cost-effective and efficient, and make proportionate use of resources. Disputes and prosecutions will be resolved quickly and secure just outcomes. Damages-Based Agreements/QOCS Under the banner of access to justice, damages-based agreements (DBAs) will be introduced and it will be interesting to see if they are any more popular in Scotland than in England and Wales. Speculative fee agreements ( no win/no fee ) have been allowed for many years, but added protection will be offered to those taking up either of these agreements through qualified one-way costs shifting (QOCS). Legal aid remains available for injury cases in Scotland. There will be exceptions to QOCS where the pursuer is found to have acted unreasonably ( unreasonably has not yet been defined). DBAs will be subject to regulation to provide protection for the public and there will also be a cap on the level of success fees under both DBAs and speculative fee agreements but with the solicitors entitled to retain judicial expenses (costs recovered) in addition to the success fee. It is not, however, proposed that members of the public should receive independent advice on such agreements. Tenders (the equivalent of Part 36 offers in England & Wales) will still be effective with QOCS but it is proposed that the defender s recoverable post-tender judicial expenses should be capped at 75% of the damages recovered. Referral Fees The government agrees with Taylor that referral fees should be permitted, subject to appropriate safeguards. Pending a review of whether claims management companies should be regulated, only solicitors will be able to pay referral fees. The government proposes to consult with the Scottish Law Society over the changes that will be needed. Counsel There will be controls over the levels of fees payable to counsel and also when counsel may be instructed. This is particularly relevant given the anticipated transfer of most personal injury cases to the sheriff court, where counsel are not mandatory. This is aimed at achieving equality of arms between claimants and insurers. Implementation It is recognised that the implementation of these proposals will require behavioural changes amongst the parties with the need to encourage good claims to be progressed quickly and for frivolous cases to be discouraged. Compulsory pre-action protocols, to regulate pre-action behaviour are regarded as being an important part of the new landscape the implementation of these proposals will require behavioural changes amongst the parties

6 With increasing regulation of solicitors the government is taking the opportunity to review the extent to which claims management companies should also be regulated. This is seen as a way of levelling the playing field between the two providers of services and improving the protection of vulnerable clients from unacceptable practices. Much of this will require primary legislation for which no timetable has been given, although the indications are that the necessary legislation will be taken forward as quickly as possible. We may see earlier developments where issues can be dealt with by the Scottish Civil Justice Council under secondary legislation. For further information on this article, please contact: Cameron McNaught Partner Plexus Law Scotland T: E: Publications If you would like to receive any of the below, please indicating which you would like to receive. Weekly: Legal Watch: Personal Injury Monthly: Legal Watch: Property Risks & Coverage Quarterly: Legal Watch: Counter Fraud Legal Watch: Disease Legal Watch: Health & Safety Legal Watch: Marine Legal Watch: Professional Indemnity Contact Us For more information please contact: Geoff Owen Learning & Development Consultant T: E: To unsubscribe from this newsletter please The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

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